Per V.K. Agrawal :

In these three appeals, filed by M/s. Diamond Cements, the issue relates to the availability of CENVAT Credit.

2. Sh. B.L. Narasimhan, learned Advocate, submitted that the appellants have two units, which are adjascent to each other, both engaged in the manufacture of cement; that they have installed a D.G. Set in their factory in Diamond-I; that they have taken CENVAT Credit of the duty paid on LDO, which is used as fuel and on the lubricating oil which is used for maintenance of the D.G. sets and also on the cleanflo which is an item used for demineralisation of the water; that a portion of the electricity, so generated in the D.G. set in Diamond-I, is supplied to Diamond-II; that the Revenue has denied CENVAT Credit on the items used as fuel for generating electricity on the ground that a portion of the electricity is supplied outside the factory; that it has been held by the Tribunal in the case of Dhampur Sugar Mills Ltd., 2001 (43) RLT 299 (CEGAT-Del.)=2001 (129) ELT 73 (T) that number of different plants manufacturing different excisable goods in same premises would constitute one factory and their separate registration would not mean that they are different factories; that no doubt, the Supreme Court has admitted the Revenue's appeal against this decision, but the Supreme Court has not granted any stay; that the decision in the case of Associated Cement Co. Ltd. vs. CCE, 2002 (53) RLT 72 (CEGAT-Del.)=2002 (150) ELT 296 (T) is not applicable to the facts of the present matter as in the said decision the capital goods were installed in other unit; that moreover, though the decision in the case of Dhampur Sugar Mills Ltd. (supra) was relied upon in A.C.C. Ltd., the learned Single Member has not discussed the same. Reliance has also been placed on the decision in the case of Rollatainers Ltd. vs. CCE, 2002 (51) RLT 531 (CEGAT-Del.)=2002 (150) ELT 383 (T), wherein paperboard division and paper division being situated in same premises is regarded as one factory.

3. Learned Advocate also submitted that CENVAT Credit has also been disallowed to them on the ground that the invoices, under which the inputs were not valid duty-paying documents in as much as M/s. Indian Oil Corporation Ltd., Jhansi were not registered dealers; that Indian Oil Corporation Ltd., Jhansi are duly registered with the Department. In support of is contention, the learned Advocate submitted that the registration certificate No. 06/Registered Dealers/R-III/99 was issued by the Superintendent (Central Excise) Range-III, Jhansi.

4. Countering the arguments, Sh. S.C. Pushkarna, learned D.R., submitted that the appellants are having separate registration for their two units, viz., Diamond-I and Diamond-II, which goes to show that these are two separate premises; that as the electricity is supplied to the other unit, the CENVAT Credit has been rightly denied to them. Regarding registration of the dealer of IOC at Jhansi, the learned D.R., submitted that the certificate now furnished by the appellants, has to be examined by the adjudicating authority.

5. We have considered the submissions of both the sides. We find force in the submissions of the learned Advocate for the appellants that mere taking of two registration certificates separately for Diamond-I and Diamond-II, these cannot be regarded as two different factories. As per Section 2(e) of the Central Excise Act "factory", means any premises, including the precincts thereof, wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on. It has been the contention of the appellants that both the units are situated in close proximity and adjascent to each other in the same premises. This has not been controverted by the Revenue that both the units are not located in the same premises. The similar issue came for consideration of the Tribunal in the case of Dhampur Sugar Mills Ltd. (supra) wherein this T